Three African American residents of New York City seeking affording housing (“Plaintiffs”) challenged the City’s Community Preference Policy as having a disparate impact on African-American and Latino. Under the Community Preference Policy, 50% of affordable housing units are set aside and distributed through a lottery for qualifying individuals living in the “community district” where the housing is located. Plaintiffs, who are all qualifying individuals, applied for housing via the lotteries, but were not selected to be interviewed for affordable housing developments. Plaintiffs claimed that the Community Preference Policy had a disparate impact on African-American and Latino applicants in “neighborhoods of opportunity,” which they alleged were predominantly white. Plaintiffs also contended that the Community Preference Policy perpetuated racial segregation in the City and constituted intentional discrimination in violation of the federal Fair Housing Act and the New York City Human Rights Law.

The instant post focuses on one of the numerous discovery disputes in the case, which is common given the extensive discovery sought in many Fair Housing cases. Here, Plaintiffs sought an order directing the City to provide samples of non-privileged documents collected from the Department of Housing Preservation & Development (“HPD”) and 50 other custodians designated as “non-responsive”. Plaintiffs also gave 665 additional search terms to be applied. The City agreed to the supplemental search despite requiring review of 90,000 additional documents at a cost of approximately $248,000, saying it would use all of Plaintiffs’ proposed search terms and use Technology Assisted Review (“TAR”). AR allows parties to prioritize and/or categorize documents for purposes of document review and has been shown to produce more accurate results than manual review. Plaintiffs objected, contending that the City’s TAR processes were flawed and resulted in the over-designation of documents as non-responsive.

Ultimately, the Court found no evidence of gross negligence or unreasonableness in the City’s TAR training or review processes. Plaintiffs failed to identify anything in the TAR process that was inherently defective, and attributed the categorization of a small subset of documents as responsive or non-responsive to human error. The court further noted that the City had produced over 12,500 documents designated as responsive. Moreover, the City’s validation process, described to the Court in the City’s in camera submission, supported the conclusion that the errors identified by Plaintiffs would not have meaningfully affected the City’s TAR processes. Despite the Court rejecting Plaintiffs’ assertions that the TAR process overall was defective, it did find that Plaintiffs presented sufficient evidence to justify their request for sample sets of non-privileged documents from the documents.

The case was Winfield v City of New York,  2017 WL 5664852 (S.D.N.Y. November 27, 2017).